Continuity of service

Case 2: The facts

Mr Orchard resigned when his employer tried to reduce his contractual hours, but he was subsequently reinstated. His employment was terminated two months later.

The issue was whether, following the break in his employment, he had the year's continuous service needed to claim unfair dismissal.

The ruling

Because Orchard had worked for a day in each of the two weeks prior to his reinstatement, the Employment Appeal Tribunal (EAT) held that both weeks counted towards the period of continuous employment. He therefore had the year's service necessary to proceed with his claim.

Orchard v Carpetright plc UKEAT/0824/04

Case 3: The facts

Mr Kirkpatrick was dismissed from his job, but appealed and was reinstated. His employer then reneged on his reinstatement and dismissed him again. The issue was whether the period prior to reinstatement broke his continuity of service.

The ruling

Under section 212 of the Employment Rights Act 1996, absence from work counts towards the employee's length of service if it is considered by "arrangement or custom" to form part of continuing employment. The EAT held that there was nothing to prevent the arrangement being made after the event - and, in any case, there was a contractual provision allowing reinstatement with continuity of service. The employer's decision to reinstate Kirkpatrick was contractually binding, so he did have continuity of service and could proceed with his unfair dismissal claim.

London Probation Board v Kirkpatrick UKEAT/0544/04